ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: D-19,916/12
DATE: 20121128

BETWEEN:

GAE T. CARROLL Applicant – and – RANDY L. CARROLL Respondent

Michelle E. McAnulty, for the Applicant.

Christopher D. McInnis, for the Respondent.

HEARD: November 22, 2012

gauthier, j.

The Motions:

1The Applicant Wife (“the Wife”) seeks the following relief on a interim basis:

1. Spousal support to be paid by the Respondent Husband (“the Husband”), retroactive to and commencing on June 1, 2011;

2. Occupation rent in the amount of $1,000 per month;

3. An Order for the partition and sale of the matrimonial home, pursuant to the Partition Act ;

4. An Order that the matrimonial home be listed for sale with Eva Lanctot Realty Ltd at a price of not less than $270,000;

5. An Order that the Wife’s one-half of the net proceeds of the sale of the home be paid to her once the sale of the home is complete, and, that the Husband’s one-half interest in the net proceeds be held in trust pending determination of the equalization payment to be paid to the Wife by the Husband;

6. An Order that the Husband designate the Wife as irrevocable beneficiary of his life insurance policy or policies, pursuant to section 34(1) (i) of the Family Law Act , R.S.O. 1990, c. F.3; and

7. An Order that the Husband maintain health insurance for extended health care benefits in favour of the Wife.

2The Husband seeks an Order that the Wife pay child support on an ongoing basis.

3The Husband consents to the relief sought by the Wife in #6 and #7 above, and, consequently, a Consent Order for same will be made.

4The Wife (48 years old) and the Husband (50 years old) were married on October 8, 1988. They have one child, Jordan, born May 12, 1991. The parties separated on June 1, 2011. The Wife resides in North Bay. The Husband resides in Hanmer in the jointly owned matrimonial home, with Jordan, who attends Laurentian University. The Husband is employed by CP Rail, and the Wife is employed by CTS College.

5The Application was commenced on March 20, 2012, seeking, among other things, spousal support, equalization of the net family properties of the parties, sale of the matrimonial home, and an Order that the Husband transfer one-half of the imputed value of his pensions to the Wife.

6The Husband delivered his Answer on May 8, 2012, seeking child support for Jordan, exclusive possession of the matrimonial home and contents, and equalization of the parties’ net family property.

7The above motions, brought by the parties respectively on October 18, 2012, and October 30, 2012, are the first motions in this proceeding.

Undisputed Facts:

8The Wife moved out of the matrimonial home in June, 2011 and relocated to North Bay.

9The child Jordan has continued to reside in the matrimonial home with the Husband.

10The matrimonial home was appraised at $270,000 in August, 2012.

11The Husband has been employed by CP Rail since 1979. The Wife is an accredited Pharmacy Technician.

12The parties agree that the Husband’s pension has a value of $336,000 net of taxes.

13According to the Husband’s Canada Revenue Agency documents, his income for 2009, 2010, and 2011 was as follows:

2009: $93,051 (Notice of Assessment)

2010: $107,791 (Notice of Assessment)

2011: $108,819 (Notice of Assessment)

14Effective October 14, 2012, the Husband’s position with CP Rail is that of an Engineer Yard, with a daily rate of $259.46. He works 5 days per week.

15According to the Wife’s Canada Revenue Agency documents, her income for 2009, 2010, and 2011 was as follows:

2009: $40,777 (Notice of Assessment)

2010: $37,172 (Notice of Assessment)

2011: $36,711 (Notice of Assessment)

16The Husband’s pension (Canadian Pacific Railway Company Pension Plan for TCRC-RTE employees), has a net lump sum value of $336,476.

17The Wife does not have a pension, although she had RRSPs worth $15,000 at the valuation date.

18At the valuation date, the Husband had stocks and RRSPs worth $29,000.

19Jordan is a full-time student at Laurentian University. He has received Ontario Hockey League Scholarships for the academic years 2011/2012 and 2012/2013, in the amount of $6,000 each.

20To date, the Husband has not paid any spousal support to the Wife, and the Wife has not paid any child support for the child Jordan.

21Issues:

(A) Is the Wife entitled to spousal support, and if so, what is the income of the Husband for purposes of determining the appropriate quantum of spousal support?

(B) Should the Wife be granted retroactive spousal support, and, if so, based on what amount of income of the Husband?

(C) What amount, if any, should the Wife pay for support of the child, Jordan?

(D) Should the Wife be awarded occupation rent? And

(E) Should the matrimonial home be listed for sale and should the ancillary orders sought by the Wife be granted?

(A) Entitlement and Quantum of Spousal Support:

22There was little argument on the issue of entitlement. On the evidence, entitlement is made out on a prima facie basis. This was a 13 year marriage in which a child was born. I have no information about the parties’ respective incomes in the early years of the marriage, but certainly in the last two and a half years before the separation, there was a significant disparity in the relative incomes of the spouses.

23Typically, although not invariably, a significant disparity in income at the point of the breakdown of a relatively long marriage will create entitlement to spousal support. I conclude that such is the case here.

24Pursuant to section 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) , the condition, means, needs and other circumstances of each spouse are to be considered, including the duration of the cohabitation, the functions performed by each spouse during cohabitation, and any arrangement made by the parties relating to support.

25In this case, there is no arrangement in place, and I have little or no information or evidence about the functions performed by the Husband and Wife during their marriage.

26The focus therefore is the means and needs of each of the parties.

27As of June 11, 2012, the Wife is earning $875 per week, from her employment at CTS Canadian Career College, in addition to $200 per month from self-employment. That would translate to $3,988 per month.

28From January, 2012, to the end of May, 2012, the Wife was earning approximately $3,768 per month (year to date earnings of $17,341 for the period ending May 31, 2012, plus the self-employed earnings).

29As indicated earlier in these reasons, as of October 14, 2012, the Husband’s current daily rate is $259.46 and he works five days per week. This translates into $5,617 per month. It is not clear from the evidence whether the Husband is entitled to or receives any other monies by way of allowance, overtime, statutory holiday pay, or any other form of remuneration. That will be a matter to be established at trial.

30The evidence also establishes that from January 1, 2012, until September 27, 2012, the Husband was earning $76,439 annually, or $8,493 per month. See Exhibit C to the Husband’s Affidavit, sworn on October 30, 2012.

31The Wife suggests that I should impute a higher level of income to the Husband given the higher income he was earning in the years leading up to 2012. The Wife suggests further that the Husband could have continued to earn the higher amounts had he not sought to return to Sudbury from MacTier where she alleges he had been working in order to maximize his pension for some time before the separation. It is the Wife’s position that the Husband returned to Sudbury after the separation to deliberately reduce his income and his spousal support obligation.

32Those matters referred to in the paragraph above are matters best left for the trial judge, before whom a complete inquiry can be made by way of examination and cross-examination.

33For purposes of the interim support order, it is appropriate to rely on the actual amounts that each party earned, in determining what the amount of spousal support should be. The evidence provides me with the actual income each of the parties earned to date in the year 2012.

34I take into account as well that, as of March, 2012, the Wife’s monthly expenses were $4,056.65(Financial Statement sworn March 20, 2012). In October, 2012, the Wife’s monthly expenses were in the amount of $5,635 (Financial Statement sworn October 12, 2012).

35Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise. Ladd v. Ladd , 2006 BCSC 1280 () , [2006] B.C.J. No.1930.

36Applying the guidelines, and based on the income of each of the parties as I have found it to be, the Husband should currently be paying the Wife $305 per month.

(B) Retroactive Support:

37Although the Wife seeks support effective the month of the separation, the Application was not commenced until March, 2012.

38I have no evidence to assist me in determining whether the Wife should be awarded spousal support from the date of separation. That will properly be a matter for the trial Judge.

39Accordingly, I conclude that, on a temporary basis, it is appropriate to make the spousal support obligation effective on April 1, 2012.

40Based on the respective incomes as I have found the to be, the Husband should have paid spousal support as follows:

(a) For the months of April and May, 2012, the sum of $1075 per month;

(b) For the months from June to October, 2012, inclusive, the sum of $1025 per month.

41The Wife is free to pursue her claim for an earlier effective date, at trial.

(C) Child Support:

42The Husband seeks support for Jordan on an ongoing basis. The claim for retroactive child support is left for trial.

43Jordan continues to reside with his father and he is entitled to child support from the Wife. It is appropriate, at this stage of the proceeding, to base the support order on the Child Support Guidelines.

44Based on the Wife’s annual income of $47,856, she should be paying child support for Jordan in the amount of $432 per month.

(D) Occupation Rent:

45There must be evidence of the amount of monthly rental income that the matrimonial home could yield.

46There must be a calculation of the amount to be credited against the rental amount (i.e. half the taxes and insurance).

47There must be evidence of the mortgage and other carrying costs. Specifically, the court needs to know how much of the parties’ Line of Credit relates to the home.

48The timing of the request for an Order for sale of the house will be considered, as will the timing of the claim for occupation rent.

49All of the above matters can best be dealt with at trial.

(E) Sale of the Matrimonial Home:

50The Husband opposes the Wife’s request for an Order that the matrimonial home be sold. He submits that he should continue to occupy the home with Jordan. He has not offered to purchase the Wife’s one-half interest in the home.

51There is clear jurisdiction pursuant to the Partition Act , R.S.O. 1990, c. P.4 to order the sale of the matrimonial home. And it is appropriate to make such order in this case.

52According to the Husband’s Financial Statement, sworn October 30, 2012, the Line of Credit which includes both the mortgage and the motor vehicle loan for the Husband’s truck, has a balance of $108,000. Given the appraisal of value of $270,000 for the property, there is significant equity which both parties should be able to realize.

53There is nothing in the case at hand which would make an Order for the sale of the home inappropriate, and I will make the Order.

54I will also grant the ancillary orders requested by the Wife. The requested orders are reasonable, including the request that the Husband’s one-half share be held in trust, given that there are arrears of spousal support as a result of the Order I am making, and, it appears that the Husband will owe monies to the Wife to equalize the parties’ respective net family property.

Conclusion:

55I make the following Order:

1. The Husband shall pay to the Wife spousal support in the amount of $1075 for the months of April and May, 2012.

2. The Husband shall pay to the Wife spousal support in the amount of $1025 for the months of June to October, 2012, inclusive.

3. The Husband shall pay to the Wife spousal support in the amount of $305 commencing November 1, 2012, and on the first day of each month until further order of the court.

4. The issues of entitlement to and quantum of spousal support for the period before April 1, 2012, are adjourned to the trial judge.

5. The Wife shall pay to the Husband child support for Jordan in the amount of $432 per month, based on annual income of $47,856, commencing December 1, 2012, and continuing until further order of the court.

6. The issues of entitlement to and quantum of occupation rent are adjourned to the trial judge.

7. The matrimonial home located at 1515 Eugene Street, Hanmer, Ontario, shall immediately be listed for sale with Eva Lanctot Realty Ltd. at a price of not less than $270,000.

8. Upon the closing of the sale of the matrimonial home, one half of the net proceeds of sale shall be paid to the Wife, and the other half of the net proceeds shall be held in trust pending determination of the equalization payment owing to the Wife by the Husband, or, until further order.

9. On consent, the Husband shall designate the Wife as irrevocable beneficiary of his life insurance policy or policies, pursuant to section 34(1) (i) of the Family Law Act .

10. On consent, the Husband shall maintain in force for the benefit of the Wife a plan of health insurance for extended health care benefits including dental coverage and other coverage as available through the Husband’s employment.

56If the parties are unable to agree on costs, they are to communicate with the Trial Coordinator, within twenty (20) days of this Ruling, in order to set a date and time for a hearing on costs, failing which there will be no Order dealing with costs.